Jacob v Mount Beauty Gliding Club Inc [2004] VSC 103

5. In the defence, filed on 14 May 2003, the defendants deny negligence and raise a number of defences including one based on the application of the Civil Aviation (Carriers' Liability) Act 1961 (Vic) ("the Victorian Act"). By s. 5 of the Victorian Act the provisions of Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (C'th) ("the Commonwealth Act") apply to this contract of carriage. This has two consequences: first, that the only liability of the defendants is that imposed by s. 28 of the Commonwealth Act[1]. Accordingly, it is said, the claim in negligence must fail. Second, it is alleged that, since the proceeding was brought on 26 March 2003, more than two years after the date on which the aircraft ought to have arrived at its destination, the plaintiff's right is extinguished by s. 34 of the Commonwealth Act.

8. Section 4 of the Victorian Act sets out the circumstances which attract the application of the Commonwealth Act. The section is in these terms:

"4. Carriage to which Act applies This Act shall apply to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in Victoria and another place in Victoria, not being carriage to which Part IV of the Commonwealth Act applies or to which the Warsaw Convention, or the Warsaw Convention as affected by the Hague Protocol, applies."

12. The issue raised by the application of this provision to the facts of this case was thereby identified and, on 28 October 2003, an order was made by Master Kings pursuant to Rule 47.04 for the determination as a preliminary question:

"whether the glider flight on 10 April 1993 on which the Plaintiff was a passenger was pursuant to a contract for the carriage of a passenger within the meaning of section 4 of the Civil Aviation (Carriers Liability) Act 1961."

16. The parties agreed to the facts of this determination which are set out in the Statement of Agreed Facts and Issues filed on 24 March 2004. No evidence was led. In short, all of the elements of s. 4 of the Victorian Act were agreed to have been satisfied other than that the contract under which the plaintiff was carried was "a contract for the carriage of the passenger between a place in Victoria and another place in Victoria". Since it was agreed that the contract of carriage in this case was for the carriage of the plaintiff from Mount Beauty Airstrip to Mount Beauty Airstrip, the question became one whether such a carriage was a carriage from one place in Victoria to another place. This might occur in one of two circumstances: where under the contract the aircraft is to return to the place of departure without landing; and where it is to return to that place after landing at some intermediate place. The first, which is the case under consideration, I refer to as a "joy-flight"; the second, a "round trip".

19. As may be supposed, it was contended on behalf of the plaintiff that the words of the statute admit no doubt. This is not a contract for carriage from one place to another place; it was a contract for carriage from one place to the same place. Counsel observed that the words under consideration are to be contrasted with the expression, "carriage of the passenger between two places" in s. 5(c).

22. Counsel for the defendants in effect made two answers to this. First, as a matter of construction it was put that, in the case of a joy-flight, the carriage was between one place, the airstrip, and other places, namely all of the places where the aircraft found itself during its flight. I am unable to accept this construction of s. 4 of the Victorian Act. The precise expression which I am to construe is "a contract for the carriage of the passenger between a place in Victoria and another place in Victoria". To say of a flight that the carriage of the passenger from moment to moment is a carriage between the point of departure and location of the aircraft at that moment is a distortion of language. More importantly, to say that a contract of such carriage is a contract for such a flight is even more fanciful.

25. Finally, s. 4 of the Victorian Act must be read and construed with Part IV of the Commonwealth Act which, as will be seen, contains its own regime for application. This regime is constructed, like s. 4 of the Victorian Act, around the concept there is a contract whereby the passenger is carried by aircraft from a place of departure to a place of destination, not from a place of departure to an infinite number of locations in space throughout the flight. It is clear that, in this case, the contract was a contract for the carriage of the plaintiff between one place in Victoria and the same place in Victoria.[2]

28. The second, and more substantial, submission offered by the defendants was that I should construe s. 4 of the Victorian Act as if the expression "contract for the carriage of the passenger between a place in Victoria and another place in Victoria" should be construed as if the word "another" were deleted. Alternatively, it was put that I should treat Parliament as having inadvertently omitted words which would have achieved the same result and that I should therefore supply those words to give effect to Parliament's intention[3].

31. It is therefore necessary that I say something about the purpose and provenance of s. 4 of the Victorian Act. For a starting point it is necessary to step back nearly half a century to the 1955 Hague Protocol amending the Warsaw Convention relating to International Carriage by Air of 1929. The Warsaw Convention as amended by the Hague Protocol ("the Convention"), deals with the liability of air carriers for death or injury to passengers and for loss and damage to baggage. The detail is not important. The Convention achieves a compromise solution for claimants and carriers and their insurers when dealing with these claims. For present purposes, it is sufficient that I observe that claims for death or injury were made more straightforward by the imposition of strict liability upon the carrier[4] subject to certain exceptions[5] with a prohibition against contracting out of this liability[6]. On the other hand, the Convention fixed a monetary limit on the liability of the carrier[7] and a strict two year time limit for the bringing of an action to enforce a claim[8].

34. In 1959, the Commonwealth Parliament implemented the Convention by enacting the Commonwealth Act.[9] The Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward[10]. Article 1(2) provides a definition for international carriage in terms of the agreement for carriage:

"2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention."

This definition was amended by the Hague Protocol as follows:

"The Convention as amended by this Protocol shall apply to international carriage as defined in Article 1 of the Convention, provided that the places of departure and destination referred to in that Article are situated either in the territories of two parties to this Protocol or within the territory of a single party to this Protocol with an agreed stopping place within the territory of another State."[11]

40. In a series of decisions this definition of international travel has been construed to include the international round trip: where a passenger holds a ticket with more than one sector, for example, a return ticket from a place of departure to an overseas location and then back to the same place of departure, the place of destination is the place of departure, the place where the sectors finish. This interpretation applies notwithstanding that the return ticket is left open or that the passenger does not intend to use the return part of the ticket[12].

43. In the Commonwealth Act, Federal Parliament sought to implement the Convention with respect to all commercial aviation within the constitutional competence of the Commonwealth. Accordingly, in s. 27(1) it was provided:

"27. (1) This Part applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger:

(a) between a place in a State and a place in another State;

(b) between a place in a Territory and a place in Australia outside that Territory;

(c) between a place in a Territory and another place in that Territory; or

(d) between a place in Australia and a place outside Australia;

not being carriage to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies."

50. It will be noted that, as in the Convention, the relevant consideration is the contract of carriage, not the carriage itself. In each of these four types of contract, the place of departure differs from the place of destination. It would seem, therefore, that a contract for a joy-flight is not covered by this provision.

53. In sub-s. 3 of s. 27, Parliament addresses the question of the international or interstate or inter-State and Territory round trip:

"(3) For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be."

I observe in passing that the words in parenthesis make it clear that the word "another" in the expression, "another place in that territory" in s. 27(1)(c), is intentional.

58. In the 1959 Commonwealth Act, s. 27(3) contained a provision extending the application of Part IV to intra-State carriage where the carrier was the Australian National Airlines Commission. In such a case the Part applied "in relation to carriage between a place in a State and a place in the same State in like manner as it applies in relation to carriage between a place in the State and a place in another State". Again the absence of the word "another" in the expression "a place in a State and a place in the same State" appears to have been intentional.

61. Sub-section 4 deals with another case of difficulty, that of the multiple sector ticket:

"(4) For the purposes of this section, where: (a) the carriage of a passenger between two places is to be performed by two or more carriers in successive stages; (b) the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by two or more contracts; and (c) this Part would apply to that carriage if it were to be performed by a single carrier under a single contract;"

65. In the debate in Federal Parliament concerning this piece of legislation, the Minister expressed the hope that the States would also enact legislation to implement the Convention regime with respect to carriage which was outside Commonwealth competence. This expectation was fulfilled. Over the next few years each of the State Parliaments enacted a Civil Aviation (Carriers' Liability) Act under which the provisions of the Commonwealth Act were adopted for the carriage of passengers within the competence of the State[13].

68. For present purposes I am concerned only with the provision in each of these statutes which deals with the application of the State Act. In each case the terminology is substantially identical with that of the Victorian Act which is set out above[14]

. It will be seen that there are six elements to the application of the Victorian Statute:

2. The passenger is or is to be carried on an aircraft.

3. The aircraft is operated by the holder of an airline licence.

4. The carriage is in the course of commercial transport operations.

5. The carriage is under a contract for the carriage of the passenger between a place in Victoria and another place in Victoria.

6. The carriage is not a carriage to which Part IV of the Commonwealth Act or the Convention applies.

79. Pausing then for a moment, it cannot be doubted that, as a matter of construction, element 5 requires that the contract of carriage be a contract where the place of departure is different from the place of destination. It appears to pick up the corresponding words in s. 27(1)(c) of the Commonwealth Act. It therefore does not include a contract for a joy-flight or an intra-State round trip, that is, a flight departing from a place in Victoria, landing at a place or places within Victoria, and later returning to the place of departure.

82. In 1970 the Commonwealth Act was amended[15] to bring into its operation the carriage of passengers in chartered aircraft and in 1970 and 1971 this extension was also brought into the various State statutes[16].

85. In the 1970 and 1971 State amendments, Queensland, Western Australia, South Australia, and New South Wales, but not Victoria, passed amendments also dealing with flights where the place of departure and the place of destination were the same. They sought to achieve the in different ways.

88. In New South Wales, Parliament inserted after the words "Contract for the carriage of the passenger between one place in this State and another place in this State", the words "or from a place in this State back to that place".

91. In Queensland, Parliament inserted after the words "Between a place in Queensland and another place in Queensland" a new sub-paragraph (b):

"(b) In the case of the holder of a charter licence, beginning at a place in Queensland and ending in that place without any intermediate landing or landings at any other place or places."

95. In Western Australia the matter was addressed by the insertion of a deeming provision:

"(2) A contract for the carriage of a passenger whereby the carriage is to begin and end at the one place in the State shall, irrespective of whether the carriage is to include a landing at any other place in the State, be deemed for the purposes of sub-section (1) of this section to be a contract for the carriage of a passenger between a place in the State and another place in the State.

99. The solution in South Australia was to repeal s. 5 and to replace it with a simpler provision where the relevant part is:

(1) This Act applies to the carriage of a passenger, under a contract for the carriage of the passenger, to or from a place in South Australia in an aircraft operated by the holder of an airline licence or a charter licence in the course of commercial transport operations."

In this State the problem of trespassing upon the Commonwealth area of legislative activity as, for example, an international or interstate flight to or from a place in South Australia, was addressed by sub-s. (2) which excludes the operation of the Act for cases where the Commonwealth Act applies.

104. I mention all of this to note that the solutions adopted in New South Wales, South Australia and Western Australia, but not that in Queensland, include, not only joy-flights, but also intra-State round trips.

107. It was put on behalf of the defendants that the failure of the Victorian Parliament was a clear oversight. I was taken to Hansard where the discussion shows that joy-flights were thought to be included in the amendment then under consideration. It is not clear how this was so unless it be thought that they would be picked up merely by the inclusion of the reference to charter licences. No attention appears to have been given to the case where the place of departure and the place of destination were not different.

110. Accepting that this was an oversight, counsel for the defendants argued that I should adopt what has been described as a strained interpretation of s. 4 of the Victorian Act so that the word "another" in element 5 is ignored. This I cannot do. It is clear from the brief analysis of the provenance of this legislation that, at least in 1961, it was not intended to include joy-flights or intra-State round trips, for this reflected the thinking of the Commonwealth legislation, at least insofar as it dealt with intra-Territory flights.

113. Then, it was put, I should treat Parliament as having clearly omitted words which would otherwise reflect its intention. Again, I will not do this. The words of the statute are clear. It is not abundantly clear what was the intention of Parliament with respect to flights whose place of departure and place of destination were the same. Was it intended for example to cover joy-flights or round trips or both?

116. It seems to me that if the present statute does not deal with the matters as Parliament might have intended, it is for Parliament to remedy this. I construe s. 4 of the Victorian Act in accordance with its plain and unambiguous meaning. Accordingly, I determine the preliminary issue as follows:

"The glider flight on 10 April 1993 on which the plaintiff was a passenger was not pursuant to a contract for the carriage of a passenger within the meaning of s. 4 of the Civil Aviation (Carriers' Liability) Act 1961 (Vic).

[1] Commonwealth Act s. 36

[3] Kingston v Keprose Pty Ltd 1987 11 (NSWLR) 404 at 422-3, per McHugh JA

[9] Section 4(1) repealed the earlier Carriage by Air Act 1935 by which the Warsaw Convention had been earlier implemented.

[12] Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1 at 13, per Knight DCJ and the cases there referred to.

[13] (Vic): Civil Aviation (Carriers' Liability) Act 1961 s. 4; (WA): Civil Aviation (Carriers' Liability) Act 1961 s. 5; (SA): Civil Aviation (Carriers' Liability) Act 1962 s. 5; (Tas): Civil Aviation (Carriers' Liability) Act 1964 s. 5; (NSW): Civil Aviation (Carriers' Liability) Act 1967 s. 5

15] Civil Aviation (Carriers' Liability) Act 1970 (C'th) s. 5

[16] Qld - Civil Aviation (Carriers' Liability) Amendment Act 1970 [No. 38 of 1970]; WA - Civil Aviation (Carriers' Liability) Amendment Act 1970 [No. 52 of 1970]; VIC - Civil Aviation (Carriers' Liability) Act 1970 [No. 7986 of 1970]; NSW - Civil Aviation (Carriers' Liability) Amendment Act 1971 [No. 8 of 1971]; SA - Civil Aviation (Carriers' Liability) Amendment Act 1971 [No. 4 of 71]. It has not been enacted in Tasmania.